Federal Judge Weighing Whether to Block some Provisions of SB1070

Phoenix, AZ – In two separate lawsuits, Judge Susan Bolton is being asked toissue an injunction against various provisions of SB 1070. To dothat she needs to conclude that there is some evidence thesections are illegal. And she needs to believe that allowing thelaw to take effect will cause some irreparable harm. During theday-long court sessions, Bolton grilled attorneys about the bill,point by point, indicating by her questions there are somesections she thinks may be legally suspect. One of the morecontroversial makes it a state crime for a non-citizen not tocarry federally required identification documents. Foes of thelaw say that language effectively allows the state to imprisonpeople whose only offense is being an illegal immigrant. EdwinKneedler, a deputy federal solicitor general, said that not onlyis beyond the state's power but that it actually exceeds federallaws which, absent more, do not make being in this countrywithout documentation a crime. Bolton, by her questioning, seemedto agree. But John Bouma, the attorney for Gov. Jan Brewer, saidafter the hearing it's not a big deal if the judge voids thatlanguage.

(She could strike section 3. And that wouldn't necessarily affectthe purpose or the effect of the statute in the long run.)

But that wasn't the only question Bolton had about thelegislation. She zeroed in on another section which says thatpolice cannot release anyone they have arrested until they firstdetermine that person is in this country legally. Omar Jadwat ofthe ACLU said that an arrest can include simply issuing acitation and letting the person go. He said that it could take anaverage of 88 minutes to get the required response on a federalinquiry. Bouma said it's more like 10. But in either case, Boltonsaid it might be inappropriate to detain someone for longer thannecessary simply to meet the requirements of 1070. Bouma insistedthat the intent of lawmakers was that the mandate apply only topeople actually booked into jail. The judge responded that isn'tthe way its worded. He conceded the point.

(I think I said it might have been inartfully worded.)

Brewer, who attended the second of Thursday's two hearings -- theone where the law is being challenged by the Obama administration-- sidestepped questions about whether the judge's questionssuggest the law is poorly worded.

(Judge Bolton asked very good questions. I believe that they werewell intended to make all of us understand and to listen toexactly what she was saying. Certainly, there's always discretionwhen you go into a courtroom. And that's why we're in court.)

But not all of Bolton's questions were aimed at the governor'sdefense of the law. Jadwat attacked another provision of SB 1070which makes it a crime for someone not in this country legally toseek work in Arizona. He said because Congress never madesoliciting employment by illegal immigrants a crime, it precludedthe states from doing that, too. But Bolton pointed to otherplaces in immigration law where Congress specifically preemptedstate action. The judge said there is no such language here. ButJadwat said that is irrelevant.

(Express preemption is one kind of preemption. There are otherkinds of preemption as well. And each of those kinds ofpreemptions, in this case, the kinds that are not express,operate to invalidate Arizona law.)

Bolton gave no indication when she will rule -- and if that willcome before the law is set to take effect next Thursday. But shedid make it clear she will not invalidate the entire statute. Shesaid some sections of SB 1070 do not directly relate to thequestioning or detention of suspected illegal immigrants by stateand local police. The judge also noted a federal appeals courtrecently upheld ordinances of a California community restrictingwhere day laborers can solicit employment. Bolton said thatlikely means there's nothing wrong with similar language in SB1070 which makes it illegal to stop on public streets to hiretemporary workers, or to try to seek employment in thosesituations. For Arizona Public Radio this is Howard Fischer.